'Mindset Lists' and a Mythical Generation Gap (and Cross Burning)

Beloit College in Wisconsin put out its annual "Mindset List" this week,
a collection of pop-cultural tidbits meant to give professors a quick
peek into their new students' knowledge base. It's a sort of academic
parallel to the Steely Dan song "Hey, Nineteen," a lament that the young
don't get the cultural references of even a decade past. Come to think
of it, the class of 2014 probably has no idea who Steely Dan is.

Shouldn't that be "who Steely Dan are"? Anyhow, Felten's main point is in the subheading: "Jokes aside, Beloit's arbiters may be the out-of-it ones." One paragraph refers to a CJLF case:

Or maybe the widely cited list is just intellectually sloppy. Consider item 22, which asserts that, for those who have just turned 18, "Cross-burning has always been deemed protected speech." Actually, the Supreme Court ruled in 2003, in Virginia v. Black et al., that laws criminalizing the Ku-Kluxers' pernicious pyrotechnics can be perfectly constitutional. Justice Sandra Day O'Connor wrote in the court's majority opinion that states can "outlaw cross burnings done with the intent to intimidate."

The "et al." matters here. There were actually two cases. Barry Black, the Klansman, burned a cross at a rally. He was expressing his ideology in general terms, not directed to anyone in particular. Despicable as it is, that was protected speech. The other case involved a couple of punks named Elliott and O'Mara who burned a cross on a neighbor's lawn to intimidate him and his family. That is not protected speech, and their convictions were reinstated. CJLF's brief, which addresses primarily the latter case, is here.

There really hasn't been any huge change in this area. Black and R.A.V. v. St. Paul are reasonably consistent with prior First Amendment law. They are clarifications rather than quantum leaps. The free speech rights of hate-spewing bigots had been protected for a long time. See, e.g., National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977). So this is not a good example of a big shift in life experience between generations.